This article is written by Anshul Chauhan, pursuing a Certificate Course in Advanced Criminal Litigation & Trial Advocacy from LawSikho.com. Here he discusses “Procedure to make a Complaint against a Government Officials asking for a Bribe”.
What is Corruption?
Corruption is an evil that strikes at the heart of a healthy democracy. It creates inequality and is a major impediment in achieving inclusive development. In other words, corruption is related to the abuse of power or authority to receive illegal benefits for oneself or others.
In the present world, there is hardly any sector where corruption has not raised its ugly head. From criminal-bureaucratic-political nexus at highest levels to corruption in catching a corrupt person, corruption exists everywhere.
What is a Bribe
A bribe is a quid-pro-quo to perform one’s duty improperly or dishonestly.
What are the different levels of Corruption
Broadly speaking corruption exists at following levels
This is a high-level corruption and many times it goes unpunished either due to the complex nature of the evidence or lack of political will for prosecution. However, its complex nature does not mean that wrongdoer goes unpunished. Enforcement Directorate enforces the Prevention of Money Laundering Act 2002 and Foreign Exchange Management Act 1999. Central Board of Direct Taxes enforces the Prohibition of Benami Property Transactions Act 1988 and the Serious Fraud Investigation Office is the designated agency to look into the white-collar crimes. Some of the cases that may fall under this category include lobbying by MNC’s for securing a government contract, economic offences like money laundering by shell companies, defaulting on bank loans, influencing a national or international investigation, media manipulation, policy change, mafia connections, etc. An appropriate example is milking of huge infrastructure contracts by politicians and high ranking officials. The bribe is paid by the companies through a series of intermediaries or shell companies to escape detection. Usually, the bribe transactions are clothed as consulting fees to create a smokescreen around the transactions and persons involved in such transactions.
Corruption at the Grassroots level
Corruption at the grassroots level may include a variety of illegal acts. Adulteration in construction material and food industry, allocation of resources, job appointments, delivery of basic services like ration card, certificates, health, electricity, water, compromise in ethical standards, use of influence, neglect in performing one’s duties, regularization of illegal property, etc.
What are the various legislations under which a person is punishable for corruption?
For the offences pertaining to the Prevention of Corruption Act 1988 and Indian Penal Code, a person can approach directly to CBI, CVC, Police, State Vigilance or Court to make a complaint against a public servant asking for a bribe. Under the Lokpal & Lokayukta Act and Whistleblowers Protection Act, a person has to address the complaint to the Lokpal and competent authority respectively.
The various legislations to contain corruption in India are as follows –
The Prevention of Corruption Act, 1988 and Prevention of Corruption Amendment Act 2018. The aforesaid Act is supplementary to the other existing laws against corruption. The scope of bribery under POCA revolves around the term “undue advantage”, which is defined as “any gratification whatever, other than legal remuneration”. The explanation attached to Section 2 (d) defines gratification as “not limited to pecuniary gratifications or to gratifications estimable in money.” Thus, gratification can be related to cash or kind.
What is the Procedure to file a complaint under the Prevention of Corruption Act?
Following government agencies are empowered to investigate and make an arrest under the Act
- CBI – Inspector of Police
- In Metropolitan Areas under CrPC – Assistant Commissioner of Police
- Elsewhere – Deputy Superintendent of Police or a Police Officer of equivalent rank
- Any other person other than above can investigate or arrest for the offences under POCA under two situations –
First – When a Metropolitan Magistrate or First Class Magistrate orders such other person from aforesaid agencies to make such arrest.
Two – When a State Government authorizes Police officer below the rank of Inspector of Police to make an arrest or investigate the matter under POCA.
Also, if any Public Servant is guilty of Criminal Misconduct as per Section 13 (1) (b) then to continue with investigation authorization of Superintendent of Police is required as per Act.
Who gives sanction for conducting the Investigation under the POCA
The Investigating agency has to obtain the previous sanction for an investigation into the complaint from the State or Union Government as the case may be. A sanction is not required when a person or Public Servant is caught red-handed. The time period for granting sanction under the Act is 3 months, which may be extended by one month.
Which Court is authorized to try offences under the POCA
Under the Act, Central or State Government is authorized to appoint a person who is a Sessions Judge or Additional Sessions Judge or Assistant Sessions Judge under CrPC as a Special Judge or Judges to try the cases. The time period to conclude the trial is two years, if the trial is not concluded within two years then the trial Judge has to record reasons in writing for delay in conclusion of a trial. This time period is extendable by 6 months at a time but the extension given to conclude the trial cannot exceed beyond four years. The trial Judge follows the procedure laid down under CrPC for the trial of warrant cases. Also, a Special Judge can try any offence under the Essential Commodities Act summarily.
Who can obtain sanction for prosecuting Public Servant under the Act?
A previous sanction for prosecution from the authority (State or Central Government) under which the Public Servant is working is required for the following offences –
- Public Servant being bribed (section 7),
- Public Servant obtaining undue advantage (section 11),
- Criminal misconduct by Public Servant (section 15) and
- Attempt by Public Servant to commit criminal misconduct.
Under the Act, two kinds of a person can apply for sanction to prosecute a Public Servant, namely –
- A Person who is part of investigating agency, such as CBI or Police, and
- Any other person. As per section 19 of the POCA, any other person can ask the previous sanction of concerned government for taking cognizance by the court for the offence mentioned under sections 7, 11, 13 and 15.
The procedure to obtain sanction to prosecute Public Servant is as follows –
Firstly – Person files the complaint along with reasonable materials before a Court of Special Judge about the alleged offence for which the Public Servant is sought to be prosecuted
Secondly – The Court has not dismissed such complaint u/s 203 of CrPC.
Thirdly – After receiving the complaint, the Court directs the complainant to obtain the sanction for prosecution against the Public Servant.
Fourthly – A person has to apply to the concerned government seeking sanction to prosecute the Public Servant.
Fifthly – The concerned government agency has to give ‘opportunity to be heard’ to the accused Public Servant as to why sanction to prosecute him should not be given, and
Lastly – The time period under which the concerned government may try to grant sanction is 3 months, extendable by a period of one month.
Indian Penal Code
Chapter IX of the IPC deals with offences by or relating to Public Servants and Chapter IX A deals with offences relating to elections. Also, a complaint can be filed against the Public Servant u/s 409 for the Criminal Breach of Trust. The aforesaid offences fall under cognizable as well as non-cognizable offence.
A complaint against the Public Servant for an offence of bribery or relating to bribery, under the IPC, can be registered in the following ways –
One – For the cognizable offence one can go to Police Station with the material evidence and lodge an FIR u/s 154 of the CrPC. The complaint can be oral or in writing.
If the Police Station refused to lodge an FIR, the aggrieved complainant can send his complaint to the Superintendent of Police u/s 154(3) of the CrPC to investigate the case.
Two – For non-cognizable offence, a person can give the information to the Police Officer, who may record the information in a book, but section 155 (2) of the CrPC divests the Police Officer of any investigating power in such a case. The Police Officer can refer the informant to the Magistrate empowered to try the case or commit the case to trial.
Three – Under section 200 of the CrPC, a person may make the complaint, orally or in writing, to the Magistrate.
The Lokpal and Lokayuktas Act, 2013 (L&L Act, 2013)
Recently, former SC Judge was appointed as the first Lokpal.
Jurisdiction of the Lokpal – The Lokpal can inquire into offences under the Prevention of Corruption Act by anyone who is or has been –
- Prime Minister
- Union Minister
- Chief Minister
- Member of Parliament
- Group A, B, C and D officers
- Officers of Central Government
- Chairperson, Member, Officer, Employee of any organization established by an Act of Parliament, financed (wholly or partly) or Controlled by the Central Government, including any society or trust or anybody receiving foreign contributions above ₹10 lakh.
Procedure to make a complaint and conduct of preliminary inquiry and investigation by the Lokpal –
- Any person can make a complaint to the Lokpal, however, the alleged offence must fall under the offences mentioned under the Prevention of Corruption Act, 1988. Till now there is no prescribed form for making a complaint to the Lokpal, therefore, Lokpal scrutinizes the complaints in whatever form they are sent by the complainant. Upon receipt of a complaint, an Inquiry Wing of the Lokpal conducts preliminary inquiry and investigation.
- Upon the receipt of a complaint by the Lokpal, Lokpal decides whether to proceed with the complaint or not.
- If it decides to proceed with the inquiry, Lokpal can direct any of the following agencies to conduct the investigation for ascertaining the existence of prima-facie case –
One – Internal Inquiry Wing headed by the Director of Inquiry u/s 11 of the L&L Act, 2013 or
Two – Any other agency including CVC and Delhi Special Police Establishment a.k.a CBI, the L&L Act 2013 mandates Lokpal to seek an explanation of the Public Servant in respect to complaint before referring the case for investigation to any other agency.
Three – Preliminary inquiry of Group A, B, C, D Public Servant is referred to the Central Vigilance Commission. The preliminary inquiry report of Group A and B Public Servant is submitted to the Lokpal whereas in respect of Group C and D Public Servants the CVC proceeds as per the CVC Act.
Before ordering, a prelim inquiry by any other agency the Lokpal asks explanation from the Public Servant to ascertain the existence of prima facie case for conducting a preliminary inquiry.
CrPC, DPSE Act and PoCA require the sanction of Central Government or State Government, as the case may be for the purpose of prosecuting a Public Servant for an offence committed during the discharge of his or her duty, however when the case is referred by the Lokpal to any investigating agencies only a Lokpal can grant sanction for prosecution, notwithstanding anything contained in the aforementioned Acts. In other words, for cases referred by the Lokpal, an investigating agency works under the superintendence and control of the Lokpal and not under the State or Central Government. However, sanction from Lokpal is not required where provisions of removal from office are provided under the Constitution of India. Also, this power of Lokpal does not interfere with the procedure in respect to “Dismissal, removal, or reduction in rank of persons employed in civil capacities under the Union or State” and disciplinary action by the Public Service Commission’s under Art 311 and 320 (3) (c) of the CoI respectively.
Lokpal can punish complainants for false, vexatious and frivolous complaints under the L&L Act, 2013
Except for the complaints made in good faith, the Lokpal is empowered to initiate proceedings against the complainant u/s 46 of the Act for making a false, vexatious and frivolous complaints.
What is the procedure to initiate proceedings against the Complainant
- Public Servant against whom such false complaint was made makes a complaint to the Special Court or an officer authorized by the Lokpal makes a complaint to the Special Court
- Only a Special Court designated under the Act are authorized to take cognizance of section 46
- Such a complainant on being found guilty is liable for up to one-year imprisonment or fine up to ₹10 lakhs, also the Court can order the complainant to pay compensation and legal expenses to the Public Servant.
The Whistleblowers Protection Act, 2014
Can the identity of the complainant be revealed by the competent authority under the provisions of the Whistleblowers Protection Act, 2014?
No, and yes, as per the provisions of the Act, the competent authority to whom the complaint is made cannot reveal the identity of a complainant. However, there is an exception to the non-disclosure of identity provision. Under certain circumstances, the competent authority can reveal complainants identity only with complainants consent. Such circumstances usually include seeking comments and material for completion of the preliminary inquiry. In case a complainant objects to the revelation of his identity then as per the Act, the complainant has to provide all documentary evidence to sustain its complaint. Also as per section 13 of the Act, a competent authority or an order of the Court can decide to reveal the identity of the complainant when the circumstances demand so.
What protection is available to the complainant under the Act
- Central Government cannot initiate any proceedings against the complainant for making a complaint or assisting in any inquiry under the Act.
- If any complainant is victimized, an application can be made to the competent authority for seeking redress against victimization. The competent authority then issues a direction to the concerned public authority to stop victimization or protect the person from any such victimization. The competent authority can issue directions to police for protecting a witness as well as the complainant
- Any public authority defaulting in obeying the instructions of the competent authority is liable to a penalty which may extend to 30,000.
What is the punishment for offences under the Act?
A complainant cannot make a complaint directly to the Court for the offences punishable under the WhistleBlowers Protection Act. A Court can take cognizance only on a complaint made by the competent authority to the Court. As per the Act, only CJM or CMM can try the offences punishable under the Act.
There are three types of punishments prescribed under the Act. They are –
- A complainant can be imprisoned up to two years along with a fine up to ` 30,000 for making a false, frivolous disclosure except when made under the good faith
- A Head of Department or a Public Servant is made liable for furnishing incomplete, incorrect or misleading report –
- For not furnishing the report – `250 per day till the report is furnished but not exceeding beyond `50,000, and
- A penalty up to `50,000 for submitting a misleading, incomplete or incorrect report
- Any person who reveals the identity of the complainant can be imprisoned for up to three years along with fines up to `50,000.
- A Head of Department can be punished as per the offence committed where the commission of an offence is established under the Act
- A company can be punished as per the offence committed
What are the agencies involved in inquiry, investigation, and prosecution?
Central Bureau of Investigation (CBI)
A person can send complaint relating to corruption in Central Government departments or Central Public Sector Undertakings directly to the CBI through email, post, fax, or in person. CBI maintains a presence in all States and Union Territories of India, the state branch of CBI being headed by the Superintendent of Police.CBI derives its power to investigate crime from the Delhi Special Police Establishment (DSPE) Act, 1946. The contact information of CBI for the purpose of reporting a crime can be accessed at http://cbi.gov.in/contact.php.
Any person reporting corruption to CBI must not make an anonymous or pseudonymous complaint, however, a complainant or informant can always ask CBI to keep his identity concealed at the time of making a complaint. To report corruption by any Central Government Public Servant, a person can approach the Anti-Corruption Branch of the CBI in the State. It is not necessary to visit CBI office, a complaint can be sent by telephone, SMS, email, post, or by posting it in CBI Website. An oral complaint can also be made to CBI. CBI needs prior approval of the State Government for taking up investigation inside State. Even a Central Government needs prior approval from the State Government before assigning any case to the CBI where State Government machinery is involved. Only HC and SC can assign CBI to conduct investigation anywhere inside the country without the consent of the State.
CBI also lays a trap to catch a public servant asking a bribe red-handed. The money used in the trap has to be provided by the complainant. The money used in the trapping process is returned to the complainant at the conclusion of the trial.
Central Vigilance Commission (CVC)
CVC is a designated vigilance agency under the CVC Act, 2003, exercising superintendence over inquiries into the offences alleged to be committed by the Public Servants under the POCA, 1988. CVC can make an inquiry by its own Officer or Chief Vigilance Officer of the organization/department or ask any other investigative agency to probe into the matter including police and CBI. When CVC refers to the inquiry to any other agency, it exercises complete control over that agency or officers with respect to the referred matter. CVC is not a uniform inquiry making a body for all Public Servants but complaints related to only certain categories of the Public Servants can be made to CVC. Private individuals and State government organizations are kept outside of the purview of CVC.
How to Register a Complaint with CVC
There are two ways in which a complaint can be filed with CVC –
- By addressing a letter/email with relevant facts and materials directly to the CVC. Any complaint made via email must contain the postal address or contact number of the complainant otherwise the CVC will treat the complaint as anonymous or pseudonymous.
- By registering a complaint directly on CVC’s website.
- If the CVC refers the case to CVO or CBI, a complaint number is provided to the complainant. The complainant can then check the complaint status on CVC’s website.
- As per the Complaint handling Policy of the CVC, a complainant must refrain from making anonymous and pseudonymous complaints.
- Complaints failing to meet the above criteria are referred to the concerned CVO and complainant has to seek the status directly from the CVO.
How to make WhistleBlower Complaints (Public Interest Disclosure and Protection of Informers Resolution (PIDPIR) to CVC
It is simply the case when the complainant does not want to reveal his identity. When a complainant exercises PIDPIR option then CVC is mandated to not only conceal his identity but also provide protection from any harassment, physical threat or victimization. However, a complainant has to make sure to not reveal his identity to any other Government office or department by sending the same complaint to other offices under his name. Where confidentiality of complainant’s identity is not possible to maintain, then commission usually obtains the consent of the complainant before proceeding to take action on it.
Procedure for making complaints under PIDPIR
- Unlike normal complaints, the whistleblower’s complaints cannot be made on CVC’s website or via email. A PIDPIR complaint has to be made strictly by post only.
- A complainant must be cautious to not write his name or address on the complaint letter. Name and address must be separately sent in another paper or given at the top end or such part of the letter so that it can be easily blocked out or cut off from the letter.
- Finally, the complainant must superscribe the envelope as “PIDPI” or “WHISTLEBLOWER”. And address the envelope to “Secretary, Central Vigilance Commission”
- If after performing the aforesaid steps, a complainant is victimized then he or she can file an application seeking commission’s intervention to provide protection from victimization.
Anti Corruption Bureau or State Vigilance
Complaints regarding corruption by State Government employees can be reported to the States Anti- Corruption Bureau or State Vigilance Commission. State Vigilance Commissions or ACB are usually empowered to register corruption cases under POCA, 1988 or Essential Commodities Act, 1955, etc. Information regarding any Public Servant accepting or demanding bribe can be given to the respective State Vigilance in person or by post, email, phone or fax.
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